Child custody laws concerning same sex couples vary from state to state and are constantly changing, making a difficult situation even worse. The awarding of custody or visitation depends on several factors in both opposite and same sex relationships. In some cases, same sex parents are given the same treatment as opposite sex parents, but in many cases, legal precedents are still being set for same sex parents.

When do both same sex parents have equal custody rights?

  • If a child is born to one individual of a same sex couple who are married or in a civil union in a state where either are recognized, and where a non-biological parent is given parental rights
  • If the non-biological parent adopted the biological child of the spouse or partner
  • If both same sex parents adopted a child together

In these situations, a court would handle custody in the same manner as it would for opposite sex parents, considering only what would be best for the child.

When does the biological parent in a same sex relationship have sole custodial rights?

This is where the state in which the couple resides makes the greatest difference. If the state doesn't provide civil unions or same sex marriage, and doesn't recognize those performed in other jurisdictions, then the non-biological parent often has no legal rights to custody or even visitation. The non-biological parent is not responsible for financial support of the child. The biological parent is the only legally recognized parent.

Does a non-biological same sex parent have any recourse through the court system to seek parental rights?

Same sex parents that are not the biological parents have been awarded parental rights through the court system by proving an ongoing parent-child relationship that would cause emotional difficulties for the child should it be severed. However, there is no set legal precedent that can be applied to all such cases. For the present, they will be continued to be decided on a case by case basis.

A skilled family law attorney will be able to assess the chances for a same sex parent to be awarded parental rights, based on state law, local court rulings, and even the opinions of local judges toward same sex parenting. Even if there hasn't been any precedents set in local courts, and the chances of success look doubtful at best, a family law attorney can help a same sex parent to set precedent themselves by taking on the court system.

For more information, contact a firm such as Mills & Mills Law Group.